Come visit us in our office whilst we are poring over a brief and, with minimal provocation, we will put aside the task at hand and start gabbing about our days as a prosecutor. Come sit next to us while we are pouring a brown adult beverage and we will get to that point even quicker. Once a prosecutor, always a prosecutor. Any lawyer who spent some part of his or her career in the criminal justice system will tell you that cases involving true force or fraud, with jail time in play, are much more emotionally gripping than any mass tort. Criminal cases came freighted with human tragedy, with bad decisions leading to ruined lives. Yes, we can now hear some smooth plaintiff lawyer saying that precisely the same thing happens in personal injury cases, but the degree of passion and venality is not nearly the same. At the same time, comedy crops up in criminal cases more often than you’d expect, usually as a weird contrapuntal note. In our day, many Assistant U.S. Attorney office doors were adorned with transcript inanities. We remember the late, great Jeff Rawitz (a fearless lawyer who left us way too soon) having an awkward moment with newly-enrobed Judge Lourdes Baird. Judge Baird had been our boss only a few months before. She was a splendid U.S. Attorney, and was a graceful, regal figure. You didn’t want to let her down – not ever, not even a little. And you craved her respect. Anyway, Rawitz was about to commence a cross-examination of an alibi witness. He told Judge Baird that he needed a bathroom break. Okay, said the Judge. Then she asked Rawitz how long he’d be. That is, she wanted to know how long the cross-examination was expected to be. That’s not how Rawitz heard it. Rawitz fidgeted, then said, “Not long, Your Honor. [Pause] Number one.” When Judge Baird heard poor Rawitz stammer about the length of his bathroom break, she turned a bit red, then did her best to restore dignity to the trial. That exchange was taped on Rawitz’s door by some colleague/wag.
Once we start on these stories, it’s hard to stop. We remember one revocation of probation proceeding that supplied more mirth than usual. The defendant had submitted to a drug test, and his urine had a super-high concentration of H2O. Clearly, the defendant had over-hydrated just before the test, a well-known way to avoid a positive drug test. There was a contested evidentiary hearing. The defendant denied any drug use, naturally. The expert witness for the government, a septuagenarian who harbored no love for those he called “drug fiends,” was adamant that the defendant had gamed the system. Now came time for the judge’s decision. After uttering a few preliminary observations, the judge was suddenly interrupted by the defendant. Though he was represented by an experienced public defender, the defendant, apparently unimpressed by the level of advocacy, grabbed the microphone and delivered a jumbled thesis on burden of proof. Then, perhaps manifesting less than complete confidence in his position, the defendant purported to school the judge on possible sentences short of returning the defendant to the care of the Bureau of Prisons. The judge cut in: “Hold on. You really don’t need to explain all this to me. I’ve been a judge for 15 years.” The defendant’s riposte was swift: “Okay, Judge, but I’ve been a criminal for 20.” That also made it onto an AUSA’s door.
All of which is to explain why we will grab hold of any criminal case that has even the remotest connection to drug and device litigation, in this case the use (and misuse) of pharmocogenomic information. Today’s case, Nebraska v. Robbins, 297 Neb. 503, 2017 Neb. LEXIS 148 (Neb. Aug. 18, 2017), is, indeed, fairly remote from our day-to-day doings, but is interesting nonetheless. Let’s begin with the fact that immediately distinguishes Robbins from the typical drug/device label nit-pickery littering our desk: the defendant in Robbins had strangled his girlfriend to death. He was charged with first degree murder. Just as almost all tort cases settle, the same is true with criminal cases. The defendant in Robbins ultimately entered a plea of guilty to a reduced charge of second degree murder. The court sentenced the defendant to 40-60 years of incarceration. In an episode of Law & Order or Perry Mason (notice how there are no tv shows on mass torts?), that would be the end of the story. Here, it is the beginning. Prisons have good law libraries and some good jailhouse lawyers As much as ex-prosecutors look back on their days in the criminal justice system with fondness, they will always report that the worst part of their job was responding to habeas petitions and other post-conviction flotsam and jetsam. Prisoner briefs are almost always nearly incomprehensible, so the first part of opposing such a motion is to translate it into something approaching rationality, and then refuting it. It is a lot of work. If you lose, all your fellow prosecutors up and down the hall will make fun of you.
The defendant in Robbins filed a motion for post-conviction relief, demanding a DNA test to determine whether he was a slow metabolizer of the anti-anxiety drug he had been taking. Huh? Why? At the time of the murder, the defendant had been taking a standard dose of an anti-anxiety drug. Now he argued that the dose was too high for his metabolism, thereby rendering him homicidal. To prove up this defense, if that’s what it was, the defendant sought relief under the state’s DNA Testing Act. The lower court granted this relief, which must have driven the prosecutor crazy, but the Nebraska Supreme Court held this ruling to be plain error. The issue was whether pharmacogenomic DNC evidence that the defendant was a slow metabolizer would constitute exculpatory evidence. The defendant contended that evidence of his slow metabolism might function as mitigation for sentencing, and could also have established defenses at trial regarding inability to forumulate the requisite intent, or could have established intoxication or insanity. But remember, there was no trial.
The post-conviction use of DNA testing to get people out of prison is, by now, old hat. You’ve no doubt read about such cases many times – perhaps enough to make you squirm about the imperfections of our justice system. Fair enough. But think about what was going on in those high-profile cases. Those DNA tests truly exonerated the prisoner. They showed that the prisoner shouldn’t be in prison at all because he or she didn’t do the crime. The court in Robbins reasoned that Nebraska’s DNA Testing Act was limited to proof of factual innocence, not the type of mitigation or excuse that the Robbins defendant was trying to demonstrate. Semi-cleverly, the defendant argued that DNA testing would involve the same issue of identity afoot in the ‘classic’ DNA exoneration cases, on the theory that he was a “different person” while on the anti-anxiety drug. The court did not buy it. Here is the court’s bottom line: “Because the Act is intended to assist in proving the innocence of a convicted person through establishing the person’s identity, it cannot be said that evidence from the DNA testing probably would have produced a substantially different result at trial. As such, the evidence is not exculpatory under the Act.” Fundamentally, the Robbins case is about statutory interpretation. The court interpreted the DNA Testing Act narrowly, limiting it to issues of identity that might completely exculpate a defendant.
On behalf of prosecutors and taxpayers everywhere, we breathe a sigh of relief over the Robbins court decision. To have granted the prisoner’s petition would have amplified what is already an imbecility in the law. To our mind, the only mental state issue that should be relevant in criminal cases should be the classic mens rea: did the defendant intend the crime? Here, did the defendant intend to strangle his girlfriend? If he thought he was opening a pickle jar, then there really is an insanity defense. But too many of the insanity tests that have had their moments over the centuries were detours into the ridiculous. Why should it matter whether the defendant knew what he or she was doing was wrong? (The dreaded M’Naughten test.) If someone thinks that murder is not wrong, that’s all the more reason to put them behind bars. Sure, administer psychiatric treatment (the federal prison in Springfield, Missouri specializes in that sort of thing), but by all means keep amoral, psychopathic, sociopathic (or whatever) killers away from the rest of us. The same is true of irresistible impulse, or any other species of craziness seized upon by silly academics or judges to excuse or even (gasp) exonerate a murderer. Look, we can always come up with a reason for anything. But reasons are not necessarily excuses. Whether one’s metabolism is too fast, too slow, or just right, murder is murder. Maybe you think that is a primitive view. Like we told you, once a prosecutor, always a prosecutor.